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Even If Russia's Guilty, Malaysia Airlines Victims Probably Can't Sue

The families of the 298 people killed on Malaysia Airlines Flight 17 would seem to have an ironclad civil lawsuit if Russia supplied the SA-11 missile launcher that shot down the jetliner. After all, if a jury in Florida thinks R.J. Reynolds should pay $23.6 billion to the widow of a smoker for lying about the health effects of cigarettes, Russia should pay at least as much for helping Ukrainian separatists murder almost 300 people, then cover up the crime by moving the missile launchers back across the border.

But it won’t work out that way. First of all, there apparently was only one U.S. citizen on the plane and recent U.S. Supreme Court decisions have dramatically reduced the ability of foreigners to sue in U.S. courts, generally considered the most hospitable to tort lawsuits. More importantly, if a sovereign nation like Russia is involved, and if it operates entirely through its own forces, it’s almost impossible for anybody to sue and win unless that government is on the ever-shrinking U.S. State Dept. list of foreign sponsors of terrorism. Otherwise, the Foreign Sovereign Immunities Act applies, and that federal law generally bars lawsuits against foreign countries.

“Not to put too fine a point on it, but sovereign governments can most often, from a legal standpoint, get away with murder,” said Gary Osen, the attorney pursuing a high-profile lawsuit against Arab BankArab Bank for handling payments to Palestinian terrorists who killed and injured Americans.

The Arab Bank case has survived precisely because it is against a commercial bank and not a sovereign government, Osen said. The government of Jordan attempted to block the suit by claiming it endangered local bank-secrecy laws but that failed and jury selection is scheduled for Aug. 11 in New York. Other plaintiff lawyers including Motley Rice of tobacco-settlement fame are suing various Arab entities over the 9/11 terrorist attacks.

The Anti-Terrorism Act provides for treble damages against non-state actors, like banks or the charitable organizations that are sometimes implicated in Islamic terrorism.

Gary M. Osen

“That could include the Ukrainian separatists themselves, Osen said. “Or any commercial private entity that provided them material support,” such as banks or even telecommunications companies.

And of course the passengers can, and mostly likely will, sue Malaysia Airlines for flying over a war zone. But when a government acts on its own, sovereign immunity provides a near-impenetrable shield against civil lawsuits over its behavior.

“If Putin hypothetically used his own private shipping company or some other Russian oligarch was the instrumentality for doing it, you might have a case,” Osen told me. “But from what we know right now, the chances of success with a civil case are low.”

There are some narrow exceptions to the FSIA, including torts committed on U.S. soil, but otherwise it leaves the victims of even a murderous act like the Malaysia Airlines shootdown with little recourse if it turns out a foreign government was involved.

That doesn’t mean victims will receive nothing. After U.S. forces accidentally shot down Iran Air Flight 688 over the Persian Gulf in 1988, the U.S. government ultimately paid $61.7 million to families of the victims. According to this Vox.com account, even the Ukraine paid $15.6 million to victims killed when its military shot down a Siberia Airlines flight to Tel Aviv in 2001.

The Arab Bank case shows how private lawyers gathering the sort of intelligence government agents have probably already compiled in the Flight 17 case can trace the connections between terrorists and the organizations that support them. One can only imagine the discussions at the Pentagon and Langley over whether to release radio intercepts, satellite images and human intelligence detailing Russia’s alleged involvement with the missile launcher.

But where lawyers in New York will use bank records to show how terrorists funneled money to the families of “martyrs” in payment for killing Israelis and Americans, in hopes of winning a big verdict, the more detailed the evidence of Russia’s involvement in Flight 17, the less likely the victims will recover anything.

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